Hadana (child custody)

An obligation, not a favor

The hadana is the care of the child who cannot fend for himself: protecting him from harm and raising him, washing, treating, putting to sleep, watching over his interests. The jurists make it a legal duty: the child perishes if no one cares for him. It is an individual obligation when only one is able, a collective one when several can: a community finding an abandoned child must take him in. Ibn Rushd reports the scholars' agreement on the duty to care for small children.

Who, and until when

Custody attaches to the child until the age of discernment, seven years; beyond that, fiqh speaks of kafala, care until puberty for the boy and marriage for the girl among the Malikis. Women take priority, for they are more tender and better suited to raising little ones; then come men, better able to protect. The mother comes first: the Prophet answered the divorced woman claiming her child: "You are more entitled to keep him as long as you do not remarry" (Abu Dawud 2276 ; Ahmad 6707).

Conditions for the custodian

• trustworthiness: the four schools require the custodian's apparent uprightness, like the marriage's witnesses; the dissolute does not keep, lest the child grow on his model;
• mental and physical capacity;
• living in the same town: if one parent wishes to move away for good, the Maliki school in particular weighs the child's interest;
• Islam: a non-Muslim mother keeps under conditions and nuances among the schools, especially if the child's religion is at risk.

The mother's remarriage

The general rule, reported by Ibn al-Mundhir and Ibn Hubayra with the consensus: if the mother remarries, her custody falls, for she gives herself to her new household. It returns if that new marriage ends by divorce or death, for the majority (Hanafis, Shafi'is, Hanbalis and some Malikis), with nuances when the divorce is revocable. The exceptions are old: the nursing infant or the child who accepts no one else; the mother married to a mahram of the child does not lose custody in the generality of the jurists, as with the daughter of Hamza entrusted to her aunt married to her father's cousin (Abu Dawud 2278). When the obstacle falls, custody returns to its rightful holder, Ibn Qudama reports.

The costs of custody

The father funds the child's maintenance, and the wage of the one keeping him when she is not obliged to; the housing of custody belongs to the schools' exchanges. The father cannot impose on the custodian to send the child to eat at his place against the child's peace: the scholars see harm to the child in that.

Practical note

Custody is settled on the child's interest: tenderness first, then protection. It belongs to no one as a prize; it is taken, lost and regained by clear rules, with a judge to settle disputes.